MEDIA

Court Reduces Sentence During Prison Term

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Edward R. Korman reduced the sentence of a man serving the second of two prison terms, despite the government’s opposition. Judge Jack B. Weinstein explained the reasons for imposing seven years of strict supervised release, rather than a jail term, for possessing child pornography. Judge Denis R. Hurley rejected defendant’s post-sentence request to amend her Pre-Sentence Report with information contradicting her pre-sentence submissions. And Judge Allyne R. Ross declined to transfer venue to the Southern District.

Sentence Reduction

In United States v. Scarpa, 94 CR 119 (EDNY, Jan. 4, 2016), Judge Korman granted the Rule 35 application of Gregory Scarpa, Jr.—who is currently serving the second of two lengthy prison terms—to reduce his sentence based on his “substantial cooperation” in 2005 while he was serving one of those prison terms. Korman reduced Scarpa’s sentence by 10 years, despite the government’s refusal to move for a sentence reduction under Rule 35(b), F.R. Crim. P., which provides for a reduction based on a defendant’s “substantial cooperation” after imposition of sentence.

Son of the “infamous Colombo crime family enforcer Gregory Scarpa, Sr.,” defendant Scarpa was charged in the Eastern District in 1988 with RICO conspiracy, 18 U.S.C. §1962(d), and related substantive offenses, and convicted. He was sentenced by Judge I. Leo Glasser to 20 years’ imprisonment. In 1995 he was indicted again for RICO conspiracy and related offenses. After a jury trial he was found guilty of a single count of RICO conspiracy to commit murder and other crimes. In 1998 Judge Reena Raggi sentenced him to prison for 482 months, to run consecutively to the earlier sentence. With good time credits, he is scheduled for release in 2035, when he would be 84. Scarpa suffers from cancer with a five-year survival rate of 38 percent.

In 2005 Scarpa was serving his sentence at the maximum-security facility in Florence, Colo. An occupant of a nearby cell was Terry Nichols, a co-conspirator of Timothy McVeigh in the 1995 bombing of the Federal Building in Oklahoma City. Scarpa persuaded Nichols to give him information. Nichols told him that before the Oklahoma City bombing he had hidden a cache of explosives in his own house for use in another attack. On March 1, 2005, private forensic investigators, contacted by Scarpa, passed on the information to the FBI.

Encountering foot-dragging and skepticism, one of the investigators reached out to Congressman Dana Rohrabacher, who pressed the FBI to take action. On March 31, 2005, the FBI searched the house and located the explosives. During an earlier search of the house in the aftermath of the Oklahoma City bombing, the FBI had not found the explosives.

Starting in 2005 Scarpa repeatedly sought a reduction of sentence for enabling the FBI to find the explosives. The government rebuffed these efforts.

A threshold requirement for Rule 35(b) relief is a motion by the government. A motion for reduction made more than one year after sentencing must be based on information that defendant did not know about until one year or more after sentencing. §35(b)(2)(A).

The government’s discretion in declining to move for a reduction is not unlimited. It should be based on a “rational assessment of the cost and benefit that would flow from moving” and not on “a failure to acknowledge or appreciate [the defendant’s] help.” Slip op. 7 (quoting Wade v. United States, 504 U.S. 181, 187 (1992)).

In opposing any relief, the government cited (among other things) Scarpa’s heinous conduct and “sham” cooperation in the past. Korman observed: “[T]he U.S. Attorney for the Eastern District repeatedly, in the ordinary course, accepts cooperation—and credits such cooperation—from defendants who are guilty of the most serious criminal conduct and who have lied in the course of their cooperation.” Slip op. 16. See Orland, “Capital Punishment Trials of Mafia Murderers,” 79-84 (2015). Slip op. 17.

As the court noted, “it does not require special expertise to evaluate the defendant’s cooperation here, which involved a matter relating to public safety.” Slip op. 9. And the sequence of events leading to the discovery of the cache shows both the FBI’s “pressing interest” in Scarpa’s information and the accuracy of that information. Slip op. 14.

The government, Korman concluded, has a compelling interest in encouraging cooperation about bombs hidden by terrorists and no interest in arbitrarily failing to credit such information after successfully using it. Slip op. 18.

The “implausible” reasons offered by the assistant U.S. attorney and by an FBI agent’s supporting affidavit to block Rule 35(b) relief were “simply a post-hoc rationalization” for the government’s position. In this regard it was “difficult to ignore” the ways in which Scarpa’s information had “embarrassed” the FBI. Slip op. 17-18.

While the reasons for denying relief were insufficient, they were relevant in determining the extent of the reduction. Balancing these reasons against the strong interest in encouraging cooperation to protect public safety, the court reduced Scarpa’s sentence by 10 years. Slip op. 19-20.

Child Pornography

In United States v. R.V., 14 CR 0316 (EDNY, Jan. 21, 2016), Judge Weinstein sentenced a defendant who had pleaded guilty to possession of child pornography to seven years of strict supervised release, departing downward from a Sentencing Guidelines range of 78 to 97 months’ imprisonment and a probation department recommendation of 24 months in custody with five years of supervised release.

In its 98-page decision, the court noted that the Sentencing Guidelines fail to distinguish sufficiently among child pornography offenders, who range from passive viewers through those who physically abuse children in the course of producing child pornography. Congress has not responded to the U.S. Sentencing Commission’s request that it review sentencing for child pornography cases. Slip op. 94.

Weinstein reviewed the guidelines, scholarly studies, and letters from the families of defendants regarding the sentencing of child pornography offenders, as well as the history of shifting societal norms and increased access to child pornography through the Internet. Slip op. 29-72.

“Although no longer mandatory, the Guidelines’ sentencing ranges continue to function as the ‘starting point and the initial benchmark’ for all sentencing proceedings.” Slip op. 68, quoting Gall v. United States, 552 U.S. 38, 46 (2007). But “a sentencing court need not follow the sentencing range suggested by the Guidelines if it disagrees with a relevant policy reflected in the Guidelines,” Spears v. United States, 555 U.S. 261, 264 (2009). The court’s discretion is greater where the offense guideline at issue is not the product of the commission’s empirical analysis and technical expertise. Here, Congress had not acted on the commission’s request for statutory authority to revise the relevant guideline. Slip op. 71-72.

Defendant R.V. had pleaded to one count of accessing child pornography over the Internet (18 U.S.C. §2252(a)(4)(B)). He was married, with three minor and two adult children. Several experts spent substantial time with defendant, who had cooperated with an extensive rehabilitation program, and with his wife and children. They concluded that defendant posed no threat to his own children or others, and “not only could his [minor] children safely live with R.V., but they would be negatively affected if they were to be separated from their father.” Slip op. 76.

Because defendant “has expressed sincere remorse for his actions and has fully participated in treatment, making adequate progress[,]” and given the low risk of re-offense, a “non-incarceratory sentence under strict supervised release conditions” was warranted. Slip op. 77. After reviewing sentencing departures in analogous cases, slip op. 88-93, the court found that continuing treatment followed by probation, together with mandatory sex-offender registration, supported the sentence of seven years of strict supervised release. Slip op. 97. Defendant also was ordered to pay $2,000 in restitution, a $12,500 fine, and $100 special assessment.

Pre-Sentence Report

In United States v. Schneider, 12 CR 0074 (EDNY, Jan. 11, 2016), Judge Hurley denied defendant’s request for an addendum to her Pre-Sentence Report (PSR) to reflect the purported “true history of her addiction” so that she could continue with an addiction treatment program.

Defendant pleaded guilty in February 2014 to “wire fraud related to a series of particularly pernicious falsehoods she made to investors over an approximately fifteen month period,” leading to losses of almost $7 million. She was sentenced to incarceration for 36 months, below the advisory guideline range of 51 to 63 months, based on extraordinary family circumstances.

As Hurley explained, the PSR specifically addressed substance abuse, and before sentence both plaintiff and her mother had advised that she did not have any illegal drug or alcohol abuse problems. No one made any effort to correct the substance abuse portions of the PSR at the time of sentencing, including her experienced attorney. What defendant wanted was thus “not truly ‘a correct[ion]’ of the PSR but rather its recasting, with the apparent thought that—in some unexplained fashion—such modification will enhance the likelihood of her being accepted into one or more post-sentence programs.” Slip op. 3.

The court declined “defendant’s invitation to, in effect, delete the information both she and her mother provided to the probation department detailing her noninvolvement in the excessive use of alcohol or drugs and to insert in its stead a completely different recitation on the subject.” Slip op. 4.

Venue Change Denied

In Aguirre v. Westchester County, 15 CV 3616 (EDNY, Jan. 11, 2016), Judge Ross denied defendants’ motion to transfer venue to the Southern District of New York in an action in which plaintiffs alleged various federal and state claims arising from police and prosecutorial misconduct.

The complaint alleged as follows: On June 20, 2012, three members of the Westchester County Police Department broke into plaintiffs’ apartment in Queens, handcuffed plaintiffs, and coerced them to consent to a search of their apartment. The officers drove plaintiffs, still in handcuffs, to Westchester County Police Headquarters. Plaintiff Melissa Sanchez was searched and held, then released at 1 a.m. Plaintiff Aguirre was not released, and was interrogated, despite requesting counsel, about an alleged robbery and assault.

Aguirre was indicted for robbery in July 2012. In November, the Westchester County Court dismissed the indictment for insufficient evidence. After weeks in solitary confinement, he was finally released in January 2013—nearly seven months after being seized at his Queens home.

Plaintiffs sued Westchester County, its Police Department, Department of Public Safety, and Department of Corrections, as well as the City of Rye and its Police Department, and various officers of the defendant departments. The defendants argued that the interests of justice and convenience would be served by transfer because many of the operative facts occurred in the Southern District, including plaintiff’s incarcerations and the underlying investigations that led to the arrests.

Venue was proper in both districts. The court has broad discretion in deciding whether to transfer a case, and the moving party must establish by clear and convincing evidence that transfer is warranted. Ross considered the factors relevant to determining whether the interests of justice and convenience would be served by a transfer. First, the “locus of operative facts” was in the Eastern District, because the story started when the three detectives broke into plaintiffs’ home and illegally seized them without either a search warrant or an arrest warrant. The court rejected defendants’ claim that the search and arrest were only part of an investigation that was rooted in the Southern District.

Second, because plaintiffs’ choice of venue was both the locus of operative facts and plaintiffs’ domicile, it was entitled to “substantial consideration.”

Third, the convenience of the witnesses tipped in favor of plaintiffs.

Further, given the ease of sharing documentary evidence electronically, the location of the relevant documents was not significant.

The court thought travel to Brooklyn was highly unlikely to impose a significant burden on the resources of the municipal defendants. Also, the individual plaintiffs were more likely to have fewer means than the municipal employees to travel and take time off from work.

On another point, it was more important for plaintiffs to have an Eastern District jury hear their allegations than for defendants to have jurors from their own municipalities. Slip op. 10.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.